[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10884 ELEVENTH CIRCUIT
JULY 9, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:09-cr–00241-WSD-ECS-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAMADOU SADIO BARRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 9, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Mamadou Sadio Barry appeals his conviction for felony copyright
infringement, in violation of 17 U.S.C. § 506(a), 18 U.S.C. §§ 2319(a), (b)(1) and
(2). Barry argues that the district court erred in denying his motion to suppress
three incriminating statements that he made to law enforcement, and in ruling that
certain evidence of his prior similar acts was admissible, pursuant to
Fed.R.Crim.P. 404(b).
I. Motion to Suppress Incriminating Statements
Barry argues that three statements that he made to law enforcement should
have been suppressed because they were involuntarily made. He argues that the
police presence prior to each of his interviews created an intimidating environment,
in which he believed that he had no alternative but to make incriminating
statements, and he was not given his Miranda1 warnings prior to the questioning.
We review a district court’s denial of a motion to suppress as a mixed
question of law and fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir.
2009). Rulings of law are reviewed de novo, while the district court’s findings of
fact are reviewed for clear error and viewed in the light most favorable to the
prevailing party. Id.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. The
1
Miranda v. Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694
(1966).
2
Supreme Court in Miranda “established that custodial interrogation cannot occur
before a suspect is warned of [his] rights against self-incrimination.” United
States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007). Statements made in
violation of Miranda are not admissible at trial. Miranda, 384 U.S. at 444-45, 86
S.Ct. at 1612. We have described the test for determining custody as follows:
A defendant is in custody for the purposes of Miranda when there has
been a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest. Whether [a defendant] was in
custody prior to his formal arrest depends on whether under the
totality of the circumstances, a reasonable man in his position would
feel a restraint on his freedom of movement to such extent that he
would not feel free to leave. The test is objective: the actual,
subjective beliefs of the defendant and the interviewing officer on
whether the defendant was free to leave are irrelevant. Under the
objective standard, the reasonable person from whose perspective
‘custody’ is defined is a reasonable innocent person.
United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (quotations,
citations, alteration, and emphasis omitted). We are to consider several factors in
determining custody, “including whether the officers brandished weapons, touched
the suspect, or used language or a tone that indicated that compliance with the
officers could be compelled.” United States v. Street, 472 F.3d 1298, 1309 (11th
Cir. 2006) (quotation omitted).
If a court determines that the requirements of Miranda have been met, it
must then determine that any confessions or incriminatory statements made by a
3
defendant were voluntary in order to admit such statements at trial. United States
v. Bernal-Benitez, 594 F.3d 1303, 1317-18 (11th Cir.), cert. denied, 130 S.Ct. 2123
(2010). With respect to the admissibility of incriminatory statements and
confessions made by a defendant to police, we consider:
the totality of the circumstances, including the details of the
interrogation and the defendant’s characteristics, when deciding
whether a confession was voluntary. We focus on whether the police
overreached, considering factors such as the accused’s lack of
education, or his low intelligence, the lack of any advice to the
accused of his constitutional rights, the length of detention, the
repeated and prolonged nature of the questioning, and the use of
physical punishment such as the deprivation of food or sleep.
Id. at 1319 (citation, quotations, and alteration omitted).
The district court did not err in denying Barry’s motion to exclude his three
incriminating statements because, in each circumstance, the statements were made
voluntarily during a non-custodial interview. Barry was not “in custody” during
the interviews because, objectively, a reasonable innocent person would have felt
free to leave or terminate the interview, and as such, Miranda requirements did not
apply. Further, although several officers were present executing search warrants
prior to each of Barry’s interviews, his statements were voluntary because, during
each brief interview, Barry was not threatened or physically detained. The officers
did not brandish their weapons, and Barry was interviewed calmly in a private
area. Under the totality of the circumstances, the evidence supports a conclusion
4
that Barry’s will was not overborne merely by the police presence prior to his
interviews.
II. Rule 404(b) Evidence of Prior Acts
Barry argues that the district court erred in denying his motion in limine to
exclude evidence of his December 2, 2004, encounter with police. He asserts that
this evidence was improperly admitted, under Rule 404(b), because the 2004
encounter occurred approximately five years prior to the charged conduct and was
not necessary to aid the jury in rendering its verdict. As such, he alleges that the
probative value of this evidence was outweighed by unfair prejudice.
We ordinarily review the district court’s evidentiary rulings for abuse of
discretion. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005).
However, “the overruling of a motion in limine does not suffice” for preservation
of an objection on appeal, and as such, we review only for plain error where the
defendant objects to Rule 404(b) evidence in a motion in limine, but fails to renew
his objection at trial. United States v. Brown, 665 F.3d 1239, 1247 (11th Cir.
2011). Under plain error review, an appellant must show (1) an error that (2) is
plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity,
or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725,
731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).
5
“Federal Rule of Evidence 404(b) provides that ‘evidence of other crimes,
wrongs, or acts’ is inadmissible to prove the defendant’s bad character in order to
show conduct in conformity therewith.” Brown, 665 F.3d at 1247. However, such
evidence is admissible for other purposes, such as to prove intent or absence of
mistake. Id.; Fed.R.Evid. 404(b). We follow a three-prong test for admissibility
under Rule 404(b), and in order to be admissible: (1) the evidence must be relevant
to an issue other than the defendant’s character; (2) the prior act must be
established by sufficient proof to permit a jury finding that the defendant
committed the extrinsic act; and (3) the probative value of the evidence must not be
outweighed by its undue prejudice. Matthews, 431 F.3d at 1310-11.
“A defendant who enters a not guilty plea makes intent a material issue,
imposing a substantial burden on the government to prove intent; the government
may meet this burden with qualifying 404(b) evidence absent affirmative steps by
the defendant to remove intent as an issue.” United States v. Delgado, 56 F.3d
1357, 1365 (11th Cir. 1995). Where prior act evidence is offered as evidence of
intent, the extrinsic offense must require the same intent as the charged offense.
United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001). With respect to
the second prong, “the uncorroborated word of an accomplice provides a sufficient
basis for concluding that the defendant committed extrinsic acts admissible under
6
Rule 404(b).” Id. (quotations and alterations omitted). As to the third prong, the
district court should consider factors such as the government’s need for evidence
of intent, the similarity between the charged and extrinsic offenses, and the time
elapsed between the charged and extrinsic offenses. Id.
Because questions of “impermissible remoteness are so fact-specific,” we
have declined to adopt a bright-line rule regarding temporal proximity between the
extrinsic act and the charged offense, and accordingly, the “appellant bears a heavy
burden in demonstrating an abuse of the court’s broad discretion in determining if
an extrinsic offense is too remote to be probative.” Matthews, 431 F.3d at 1311-12
(quotations and citations omitted). We have concluded that an intervening period
of as much as 15 years did not render evidence of prior convictions inadmissible.
United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995). “A limiting
instruction can diminish any unfair prejudice caused by the evidence’s admission.”
Brown, 665 F.3d at 1247 (citing Spoerke, 568 F.3d at 1251). Rule 404(b) is a rule
of inclusion, and evidence should not be excluded where it is central to the
prosecution’s case. United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006).
Given the relevance of Barry’s prior conduct, its similarity with the charged
offenses, the government’s need to prove intent, and the fact that Rule 404(b) is a
rule of inclusion, the district court did not plainly err by admitting evidence of
7
Barry’s prior involvement with trafficking in counterfeit materials.
Upon review of the record, and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
8